"Strict Scrutiny" co-host Leah Litman has the profile of a person who, in previous eras, would seem like a defender of the Supreme Court. She's a law professor at the University of Michigan and once worked as a law clerk for former Justice Anthony Kennedy. In recent years, she's become one of the most outspoken critics of how the current iteration of the nation's highest court has abandoned good faith readings of the law, basic legal reasoning, and even facts in pursuit of a far-right agenda. In her new book, "Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes," Litman chronicles the decline of this once-venerated institution. She spoke with Salon about her book and how recent cases suggest the court is getting even more unhinged in this second Donald Trump administration.
This interview has been edited for length and clarity.
I listened to oral arguments for Mahmoud v. Taylor, and I was struck by how victimized Sam Alito acted during the entire thing. He felt he was being oppressed by this children's book called "Uncle Bobby's Wedding." It perfectly illustrated the thesis of your book, which is about how much the jurisprudence of the current Supreme Court is all vibes and grievance. What were you thinking when you listened to those arguments?
I don't know whether to laugh or to cry. The justices keep providing me with so much content and so much material after I finished the manuscript. It perfectly reflects this notion of conservative grievance: the idea that social conservatives, religious conservatives, all the core parts of the Republican constituency, are the real victims. And there's no discrimination except against white evangelical Christians. That worldview was on display.
"The uncomfortable reality is that a conspiracy theory-laden universe is in full swing at the Supreme Court."
This is a children's book about a young girl being concerned that when her favorite uncle got married, he'd have less time for her. Justice Alito read it as a personal attack and rank discrimination against religious conservatives like him because her favorite uncle happened to be getting married to a man. Apparently, acknowledging that some men marry men whom they love is discrimination against Sam Alito and people who believe that marriage is between a man and a woman. It was stunning in its clarity.
I don't know what's going on in his head, but it's hard to use any word but "lying" to describe his claims during arguments. He said that the little girl in the book objected to the marriage cause she was homophobic, when she loved her gay uncle, and just didn't want him to have less time for her.
The projection is very telling. Justice Alito read this book, where Chloe is concerned about her uncle's upcoming wedding, and Justice Alito seemed to read into Chloe his own views. He imagined Chloe saying something like, "Mommy, I have a sincere religious objection to Uncle Bobby's marriage to a man." And then he interpreted her mother as saying something like, "No, Chloe, that's bad. You can't think that. Men get to marry men because that's the future liberals want."
Of course, Chloe and her mother said no such thing. He read the mere acknowledgement that a man would marry a man as an expression of hostility to his worldview, which is that same-sex marriages shouldn't exist at all. Acknowledging their existence, acknowledging the existence of LGBT people, he perceives as an attack on him, because the jurisprudence he is fashioning is all about bringing about a world where gays, lesbians, and bisexuals are not allowed to have civil rights and are not allowed to live openly.
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There's been this myth for a long time that there might be liberal judges and conservative judges, but they all adhere to the same belief that they should follow the facts and they should follow the law. Brett Kavanaugh talked about it as "calling balls and strikes." To reject the obvious reading of a children's picture book suggests that's not the case. How far have they drifted from those basic principles?
Oh, I would say quite far. It wasn't just Sam Alito, although he is the best example and encapsulation of this conservative grievance, bad vibes, fringe theory direction that the Supreme Court is headed in. During the same oral argument, you had Neil Gorsuch insisting that the book "Pride Puppy" involved a sex worker who was into bondage. If you read the book, there is a woman wearing a leather jacket, and she's at a Pride parade. Neil Gorsuch took from that and insisted, no, the book actually involves bondage and sex workers.
"The Republican justices are where the Republican Party is."
Examples are myriad. In the 303 Creative case, which also concerned LGBTQ equality, you have the court insisting the case involved a wedding website designer with sincere religious objections, who was going to be forced to make a wedding website for a same-sex wedding. The person did not specialize in wedding website design. She did not sell her business as a designer of websites from a religious perspective. And the one alleged request she received for a same-sex wedding was submitted by someone who claimed they never submitted such a request, who was a website designer themselves, and was a man married to a woman.
The Supreme Court has been running on these fast and loose characterizations of the facts for a while. We all can have a good laugh at the idea that "Uncle Bobby's Wedding" is a personal attack on people who don't believe in marriage equality. But the uncomfortable reality is that a conspiracy theory-laden universe is in full swing at the Supreme Court. It's a court captured by far-right conspiracy theories. That worldview interferes with their assessment of the law, their assessment of the facts, and their ability to engage with reality.
Sam Alito and, to a large extent, Clarence Thomas get the most attention for having their brains poisoned by this stuff. But a lot of people think Chief Justice John Roberts isn't so bad.
Look, there are differences between the Republican appointees, but the reality is, on the big picture level, they are in lockstep in important ways. Chief Justice Roberts, this purported moderate institutionalist, struck down the key provision of the Voting Rights Act in Shelby County versus Holder by inserting a misleading ellipsis into a quotation he drew from one of his previous opinions. He inserted this ellipsis, so the sentence meant the literal opposite of what it had actually said.
This is the same Chief Justice who wrote the sweeping immunity ruling that effectively placed the president above the law. And people ask why Donald Trump thinks he's above the law. Some of the president's more expansive, outlandish assertions of executive power draw from this idea of the unitary executive theory, which is the idea that the Constitution gives the president and the president alone all of the executive power. It's that idea that the president relied on to fire inspectors general, to fire the heads of commissions like the National Labor Relations Board or the Equal Employment Opportunities Commission. Guess who wrote that the Constitution puts all of the executive power in the president: John Roberts. He was writing the same for the Reagan administration back when he was a lawyer in the Reagan administration.
People mistake the forest for the trees. It's more interesting to focus on the differences between the Republican appointees. It is closer to reality to acknowledge that on these super high-profile, ideologically salient cases, the Republican justices are where the Republican Party is.
There's a recent case where reporting suggests that Samuel Alito was trying to slow walk a lawsuit regarding a bus full of Venezuelan immigrants that they were trying to send to that El Salvador in prison. The rest of the court stepped in and stopped Alito from doing that and rushed out a decision that ended up probably saving those men's lives. What is your read on that particular situation?
Some lower courts had blocked the government from relying on the Alien Enemies Act to summarily expel people to this foreign megaprison in El Salvador. The case went up to the United States Supreme Court on a request for emergency relief, blocking the government from carrying out these renditions. The Supreme Court blocked the Trump administration and released its order blocking the deportation before Alito finished his dissent. In doing so, they likely saved these men from being sent to El Salvador because they got the order out before the men could be transported.
What to read from that? It's a little hard to know. I'd imagine that the Supreme Court is responding in part to the administration's blatant disregard, if not outright defiance of their previous order in the case of Kilmar Abrego Garcia, which told the administration to facilitate Mr. Abrego Garcia's return. The administration's response has basically been, "make me." Then Stephen Miller characterized the decision in Abrego Garcia as a unanimous win for the administration. That's definitely not true. As to whether they thought they can't wait on Justice Alito, because he is trying to buy the Trump administration time to deport these men, I'm not sure.
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Trump got this immunity decision, and he seems to recognize that, as you argue in this book, these six Republican judges are going to bend over backwards to misinterpret the law to help him out. There is another case that just got going, where 12 Democratic attorneys general are suing, claiming Trump's tariffs are illegal. Which seems right to me, though I'm not a lawyer. It will be another interesting test of whether or not the Supreme Court has a limit. What are your thoughts on that case? Because it is a situation where Trump's agenda is so different than the standard Republican agenda.
If you look back at the first Trump administration, there was this case challenging the entire Affordable Care Act. The state of Texas sued on this cockamamie theory that the entire Affordable Care Act had become unconstitutional when Congress reduced the penalty for not having health insurance to $0. And the Trump administration joined Texas's lawsuit, to ask the court to strike down the entirety of the Affordable Care Act. That was a Trump thing. It was not the consensus position of the Republican caucus, which had voted down efforts to repeal the entirety of the Affordable Care Act.
In that case, the Supreme Court rejects the Trump administration's request. That's another example where the zeitgeist of the Republican Party is not exactly tracking what Donald Trump is asking for. And in those instances, you have a Republican court majority that is probably closer to the median Republican in Congress or than they are to Donald Trump. Now, that means, of course, they are enabling Trump, left and right and all over the place, you know, and are on board with a lot of his agenda. But it does mean there are some differences.
It seems to me that the Supreme Court often oversteps with regard to this Christian nationalist agenda. Or is it larger than that?
I think it is larger than that. I agree that one of the ideas they are most committed to is that conservative Christians are the victims of a society that doesn't share their views. But they are also very committed to the idea that white conservatives accused of racial discrimination are very put upon. That idea has inflected a lot of their jurisprudence on voting rights. This term, they are hearing another Voting Rights Act case that asks them to say it's actually unconstitutional racial discrimination for states to try to ensure that black voters are represented in districting. It's super transparent in the cases of religion, but it's definitely present in other areas of law as well.
When I'm chatting with people on social media, I find the Supreme Court situation is the source of almost nihilistic pessimism. There are six Republican-appointed justices. As you said, they are in lockstep with this increasingly ridiculous, paranoid agenda. There is no sense that will change any time soon. They sometimes seem to have king-like powers. Should people feel this hopeless? Are there reasons to feel that this can get better?
I understand the feeling of hopelessness. I definitely feel depressed sometimes. But, just like we tell people not to obey in advance for the Trump administration, don't obey in advance for the Supreme Court, either. If you have a great law or policy that you think will meaningfully improve people's lives, and you think it's constitutional, do it. Make them strike it down. Make them pay the price for taking away people's healthcare, voting rights, and whatnot.
Second, if you are that convinced that the Supreme Court is such a destructive force on society, you should try to convince other people of that as well. If we do that, we might be in a situation where the next time progressives, the Democratic Party, the left have political power, they could exercise that political power in ways that reduce the destructive potential and powers of this Supreme Court.
The other thing that gives me hope is the polling on the Trump administration on immigration and other matters, and especially the polling on the Supreme Court. A majority of the country is not on board with their wild grievance-laden, retributive agenda. And so that gives me hope. Just because these weirdos on the Supreme Court are doing this doesn't mean the rest of the country is OK with it.
How much of this is Mitch McConnell's fault?
Mitch McConnell is a key figure in my book for a reason. Even when Republicans aren't on board with what Trump is doing, the Republican Party and people like Mitch McConnell own absolutely everything he is doing. They have enabled him and they continue to do so. It doesn't really matter if Mitch McConnell is occasionally voting against the nominee, voting against tariffs, or whatnot. He held open a Supreme Court seat to give Donald Trump a better chance of being elected president. He refused to impeach Donald Trump when Donald Trump attacked our democracy. He has held open seats to make room for radical extremists on the lower courts who have done absolutely wild things, like order nationwide bans on medication abortion. He owns a lot of this, and he should be remembered as such.
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